In 1967, the Age Discrimination in Employment Act (ADEA) was put in place to protect workers who are 40 years old or older from discrimination on the basis of their age. While employers are forbidden from discriminating against or harassing their employees because of their age, it does unfortunately still happen. In a survey conducted by the American Association of Retired Persons in 2018, it was revealed that approximately 60% of employees over 45 have experienced age discrimination at work, and most consider their age to be a determining factor in being unable to find new employment.
What is Age Discrimination in the Workplace?
Age discrimination in the workplace generally manifests as older workers being refused employment or advancement, facing harassment, or even being terminated due to their age. In some industries such as those relating to technology, employers perceive older workers as being less knowledgeable and capable. Age discrimination is so pervasive that roughly 2/3 workers over 45 said they had experienced some level of age discrimination.
Sometimes, age discrimination can also be tied together with gender discrimination. The AARP discovered that 72% of female workers over 45 believe age discrimination is a problem whereas only 57% of male employees over 45 felt the same.
Age Discrimination Laws
Employers who are bound by the ADEA and other federal laws related to everyday ageism in the workplace include:
- Businesses with 20 or more employees
- Labor organizations with 25 or more members
- Government entities
- Employment agencies
Workers who are NOT protected by the ADEA include:
- Military personnel
- Independent contractors
- People under 40
There are many areas of employment in which an employer may discriminate against an older worker including but not limited to:
- Duties and assignments
- Forced retirement
- Job descriptions
- Job postings
Types of Age Discrimination in the Workplace
There are different types of discrimination that people may face at work due to their age:
Direct Discrimination – This is when employees are denied opportunities. This may manifest as younger employees being given training and advancement that are not offered to older employees. Sometimes an older and younger employee are both up for promotion and they have the same qualifications, and the younger employee is chosen for reasons other than age. It is important to know all of the facts of a situation when determining discrimination.
Indirect Discrimination – This is when policies and practices are put in place to deliberately exclude certain employees. This may manifest as job qualification requirements that are not necessary but put older employees at a disadvantage. Sometimes, there may be a legitimate reason for these policies, and this would need to be taken into account.
Harassment – This is when employees are mocked and berated by their boss or coworkers. This may manifest as jokes about their age, comments that they are too old to perform their work, pressuring them to retire, and holding them to a much higher standard than younger employees in the same position.
Retaliation – This is when an employer takes adverse employment action against an employee for filing a complaint or cooperating with an investigation into another employee’s complaint. This may manifest as demotions, cut hours, undue reprimands, and even termination.
Common Examples of Workplace Age Discrimination
The age discrimination examples below highlight some of the most pervasive forms of age discrimination:
Not Being Hired
Employers are not permitted to refuse to hire someone on the basis of their age. Some industries have a habit of only employing younger people and discriminating against older workers.
- Hospitality Industry – median age of 31
- Retail Industry – median age 39
- Business Services Industry – median age 42
- Construction Industry – median age 42
- Education Industry – median age 43
- Manufacturing Industry – median age 44
- Financial Industry – median age 44
- Transportation/Utilities Industry – median age 45
Some industries such as STEM fields may discriminate against older workers because they believe only younger workers are knowledgeable of new developments. Industries that involve physical speed and strength such as hospitality and construction may discriminate against older workers because they believe they can not keep up with the demands of the job.
Being Denied a Promotion
Sometimes, an older employee is up for a promotion that is then given to a younger employee who is not as qualified as they are. Sometimes there are other factors involved, but if there is a pattern of this practice within the company, there may be a stronger case for age discrimination.
Being Overlooked for Work Opportunities
Older employees are sometimes given less work and duties than younger employees and are passed over for projects and advancement opportunities. This has the effect of both making the worker look bad as well as a way to push them towards quitting or retiring.
Being Isolated from the Rest of a Team
Sometimes, older employees are isolated from their coworkers and made to feel as though they are not really part of the team. They might be left out of meetings and brainstorming sessions. They may also be ostracized from their coworkers and not included in events. They may even be asked to work from home or stationed in isolated areas.
Having a Role or Position Eliminated
One way that employers try to get around anti-discrimination laws is by eliminating the person’s role, terminating their employment for this reason, and then creating a new position that serves the same purpose and hiring someone new. This is often a tactic used to eliminate higher paid workers in order to hire someone who is willing to do the same job for much less money.
Experiencing Unwarranted Warnings or Writeups
When planning to terminate someone for discriminatory reasons, employers sometimes cover their tracks by first creating a paper trail to justify the termination. When an employee has been performing their job well with no issues and then is suddenly put on a performance improvement plan or written up for something innocuous, this may be a sign of something more.
Facing Unfair Discipline
Some employers discriminate against employees by reprimanding them for things that other employees are permitted to do. Sometimes, this is simply a case of personal favoritism, but if there is a pattern where for instance older employees are held to higher standards and criticized more harshly than younger employees in the same position, it may be a sign of discrimination.
Getting Fired or Laid Off
While layoffs and terminations may occur for a myriad of reasons, there may be patterns that show an underlaying motivation of discrimination. If a company lays off a dozen people and all or most of them are over 50, there may be something more at play. Firing someone on the basis of their age is wrongful termination and is illegal.
Rather than risk being sued for wrongful termination, some employers may try to force older employees into early retirement instead. They may offer enticing retirement packages or even create a hostile work environment to convince the employee that retiring is in their best interest. Some companies may even have a mandatory retirement for employees over a certain age, but this is not legal.
The Older Workers Benefit Protection Act was enacted in 1990 as a way to force employers to provide the same amount of all benefits to older workers as they do to younger workers. Though there are some exceptions that may arise depending on the details of the situation. This form of age discrimination can often overlap with disability discrimination as well when related to health care. The benefits that are generally of the main concern with this act are:
- Health Insurance
- Life Insurance
- Retirement Benefits
Inappropriate Behavior Prompted by an Individual’s Age
Older employees are sometimes subjected to comments, remarks, questions, and jokes about their age. They may be mocked or harassed by their managers and coworkers for being too old to do or understand certain things. They may be accused of not being able to perform their job correctly because of their age. While the people making these comments may think that it is no big deal or that they are only joking, it is part of a much larger issue.
When employers target individual employees on the basis of their age or other protected characteristics, it is unlawful harassment. Older employees are sometimes berated for small mistakes and disciplined for things that younger employees are permitted to get away with. They may be pressured to work faster and take on heavier workloads and accused of being too old for their job if they can’t keep up.
Retaliation for Filing an Age Discrimination Claim
Employees who are being discriminated against have the right to report that discrimination. Employees also have the right to act as a witness to someone else’s claim and participate in related investigations. If an employer takes adverse employment action against an employee for exercising these rights, that employee may have a case for retaliation. Common methods of retaliation include:
- Disciplinary Action
- Reduced Hours
Age Discrimination Can Also Impact Younger Employees
While age discrimination is a documented problem for older people, it can also be something that younger workers may face as well. There are many ways in which employers may discriminate against their younger employees:
- Underpaying younger workers
- Only giving raises or promotions to older workers
- Making jokes and comments about them being young
- Giving jobs and promotions unnecessary requirements that younger workers can’t meet
- Reprimanding younger workers for things older workers are permitted to do
- Terminating younger workers due to their age
How Common is Workplace Age Discrimination?
Unfortunately, it is difficult to get an accurate idea of exactly how often age discrimination happens in the workplace because it is usually unreported. The Equal Employment Opportunity Commission received over 554k reports of potential discrimination in 2018 and were able to resolve over 90k of discrimination cases for a total of 505 million dollars awarded. A survey conducted by the AARP that same year uncovered that over half of older employees have faced age discrimination at some point. Age discrimination can often overlap with gender discrimination as well as disability discrimination claims in some situations.
Contact Mesriani Law Group If You Have Been a Victim of Age Discrimination in the Workplace
It is illegal for an employer to harass or discriminate against their employees on the basis of their age. Unfortunately, age discrimination is all too common and negatively affects people every day. Our employment attorneys have the knowledge and experience necessary to hold employers accountable when they break anti-discrimination laws. We are dedicated to guiding our clients through the legal process and helping them receive the compensation they deserve. If your employer has discriminated against you because of your age, call Mesriani Law Group today for a free consultation.
Age Discrimination FAQs
What qualifies as age discrimination?
According to the Age Discrimination Employment Act, employers are prohibited from discriminating against employees who are 40 years or older on the basis of their age. This law includes discrimination in the hiring process and protects potential as well as current employees. Age discrimination in the workplace includes but is not limited to:
• Being passed over for promotion
• Being given a severely increased workload
• Being given a severely decreased workload
• Being reprimanded or disciplined for no real reason
• Being mocked, ridiculed, or otherwise harassed
• Being terminated or laid off
What are the 2 types of age discrimination?
Direct age discrimination refers to when an employer takes deliberate action against an employee due to their age. This is often in the form of an employee having their hours cut or being terminated because their employer determined that they are too old to do their job. Indirect age discrimination refers to when an employer implements certain policies and regulations that create a disadvantage for employees of a certain age. This is often in the form of age range limits and restrictions on certain jobs and benefits. This can sometimes overlap with disability discrimination when employers impose unwarranted fitness requirements on certain jobs and opportunities.
What are 3 examples of discrimination?
A few examples of age discrimination in the workplace include:
• Comments, jokes, and other disparaging remarks made about older employees
• A company only hiring or promoting younger employees
• Employees being terminated or forced to retire once they reach a certain age
What are 3 signs that someone is being discriminated because of their age?
There are a few things to look out for that may indicate that you are being discriminated against due to your age:
• You receive performance reviews that talk about not working fast enough or not grasping new ideas and procedures
• Your boss begins asking when you are going to retire or suggesting that you are too old to continue working
• You are being shut out of meetings, brainstorming sessions, company events, and important projects